Monday, July 21, 2008
Hudood Laws:Major(R)Khalid Nasr Hudood is plural of Hadd that literally means ‘limit’ - and in Islamic legal terminology Hudood means set of those laws whereby punishments of certain offences have been ordained in the Holy Qur’an and Sunnah. These are five in number, which can be enumerated as under: 1-Law of Zina - pertains to sexual offences and which has been promulgated in the country to modify the existed law in the light of injunctions of Islam about the aforementioned offences. And so the law of ‘Offence of Zina (Enforcement of Hadd) Ordinance VII of 1979’ was pronounced on 9th day of Feb 1979. 2-Law of Qazf - pertains to sexual scandalization, which was promulgated in the country so as to bring in conformity the law relating to Qazf with the injunctions of Islam and thus the law of ‘Offence of Qazf (Enforcement of Hadd) Order VIII of 1979’ was promulgated on 9th day of Feb, 1979. 3-Law of Saraqa - pertains to offences of theft against property and which was promulgated in the country to bring the existed law on the subject in conformity with the injunctions of Islam. And the law of ‘Offences against Property (Enforcement of Hudood) Ordinance VI of 1979 was thus promulgated on 9th day of Feb 1979. 4-Law of Al Sharab - pertains to the offences relating to intoxicants of all sorts, was promulgated in the country under the title of ‘The Prohibition (Enforcement of Hadd) Order IV of 1979’ on 10th day of Feb, 1979 - so as to bring in conformity the existed law on the subject with the commandments set out in the Holy Qur’an and Sunnah. All these four laws were promulgated by the erstwhile CMLA, President General Ziaul Haque. 5-Law of Qisas & Deyat - pertains to offences affecting human body, was promulgated so that the existed law on the subject could be brought in conformity with the injunctions of Shariat. And this law was promulgated under the title of Qisas & Deyit Ordinance 1991 - during the first tenure of former PM Nawaz Sharif. This Ordinance, which is comprised of Sections 299 to 338, has now replaced chapter XVI of the Pakistan Penal Code 1860. Now though in fact it is only the wording of section 3 of the ‘Offence of Qazf (Enforcement of Hadd) Order VIII of 1979’ which alone has been worded inappropriately and due to this cause this is the only section, which has been and is being tried to be exploited by the vested interests - and hence this provides food for the hue and cry by the ‘Secular Extremists’. No government could dare to interferer for resolution of this minute dispute. I, ergo try to bring forward the exact ‘diagnosis’ along with the easiest ‘cure’. To make easy and understandable the submission I would like to present only the relevant portions of the relevant law step by step. Offence of Zina (Enforcement of Hadd) Ordinance VII of 1979: Section: 2 of the ‘Offence of Zina (Enforcement of Hadd) Ordinance VII of 1979’ (hereinafter to be referred as the ZO) is comprised of definition clause which defines certain terminology of the subject that has been used in the Hudood laws. Section: 4, provides the constitution of Zina (viz sexual intercourse by mutual consent) - whereas section 5 provides the explicit conditions alone wherein the offence of Zina shall be liable to Hadd, subject to confirmation of the Appellate Court viz the Federal Shariat Court. Section: 6 of the ZO, defines well explicitly the constitution of Zina-bil-jabr (viz the rape) as well as its punishment. And this is the section of the ZO which is in conflict with section 3 of the ‘Offence of Qazf (Enforcement of Hadd) Order VIII of 1979’ (henceforth to be referred as QO). Whereas section: 8 of the ZO, provides the rigorous requirement of proof for zina-bil-jabr. Hence there is no way out but to produce the relevant portions both thereof, so as to locate the conflict exactly. Section - 6 of the ‘Offence of Zina (Enforcement of Hadd) Ordinance VII of 1979: (1) “A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man as the case may be to whom he or she is not validly married, in any of the following circumstances. (a)- against the will of the victim;(b) without the consent of victim;(c)-with the consent of the victim when the consent has been obtained by putting the victim in fear of death or of hurt; or (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married. Explanation; Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr. (2) Zina-bil-jabr is zina-bil-jabr liable to Hadd if it is committed in the circumstances specified in subsection 1 of section 5 of the ZO.” Hence now section - 5 (1): “Zina liable to Hadd is Zina liable to Hadd if; (a)- it is committed by a man who is an adult and who is not insane with a woman to whom he is not and does not suspect himself to be married; or (b)- it is committed by a woman who is an adult and who is not insane with a man to whom she is not and does not suspect herself to be married.” Section: 8 – proof of ‘zina’ or ‘zina-bil-jabr’ liable to Hadd shall be in one of the following forms, namely: (a) The accused makes before a court of competent jurisdiction a confession of the commission of the offence; or (b) At least four Muslims adult male witnesses about whom the court is satisfied having regard to the requirements of ‘tazkiyya-al-shahud’ that they are truthful persons and abstain from major sins (kabayr) give evidence as eye witnesses of the act of penetration necessary to the offence; Provided that if the accused is a non-Muslim the eyewitnesses may be non-Muslims. Explanation- in this section ‘tazkiyya-al-shahud’ means the mode of inquiry adopted by a court to satisfy itself as to the credibility of a witness. Now to find the conflict I produce section 3 of ‘Offence of QO - which is as under: Section: 3 - Qazf “Whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes an imputation of ‘zina’ concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation or hurt the feelings of such person is said except in the cases hereinafter excepted to commit ‘Qazf’. Explanation (1) - it may amount to Qazf to impute ‘zina’ to a deceased person if the imputation would harm the reputation or hurt the feelings of that person if living and is harmful to the feeling of his family or other near relatives. Explanation (2) - an imputation in the form of an alternative or expressed ironically may amount to ‘Qazf’. First exception (Imputation of truth which public good requires to be made or published): It is not Qazf to impute zina to any person if the imputation be true and made or published for the public good. Whether or not is for the public good is a question of fact. Second exception (Accusation preferred in good faith to authorized person): Save in the cases hereinafter mentioned, it is not Qazf to prefer in good faith an accusation of zina against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation; (a) A complainant makes an accusation of ‘zina’ against another person in a court but fails to produce four witnesses in support thereof before the court. (b) According to the finding of the court a witness has given false evidence of the commission of ‘zina’ or ‘zina-bil-jabr’. (c) According to the finding of the court a complainant has made a false accusation of zina-bil-jabr.” Now reading section 6 of the of ZO with section 3 of the QO, one must conclude that the conflict between these two sections is as harmful for a man as it is for a woman - and here I mean to convey that the conflict in question is very much there but given the human error - and not by design. So the question of gender discrimination does not arise, for male or female both are equally vulnerable to these two provisions. Now it is easy to understand that suppose, if a man or woman as the case may be is raped, (viz subjected to zina-bil-jabr) - obliviously he or she will have to attribute the accusation of the offence ‘zina-bil-jabr’ in the First Information Report (i.e. FIR) against the offender woman/women or man/men as the case may be - and thereafter during the trial the complainant/victim will have to depose against the offender/offenders in the court. But no one on this earth can provide the least guarantee beforehand or even afterwards that he or she would be successful to produce four eye witnesses of the offence of zina-bil-jabr’ in accordance with section: 8 of ZO in the court of law, in spite of the fact that howsoever real the complainant/victim man or woman might be - and despite the fact that howsoever real the culprit man or woman might be. And thus in case (which is always most probable) the complainant/victim he or she as the case may be, failed to produce four Muslim adult male eye witnesses about the alleged offence of zina or ‘zina-bil-jabr’ in the court of law - then lodging of the complaint of the offence of zina or zina-bil-jabr’ in police station as FIR against the offender/offenders, or deposing as complainant/victim in court of law during the trial against the offender/offenders - namely the attribution of accusation of the offence of zina or zina-bil-jabr’ against the offender/offenders, no matter howsoever real the accusation might be, would become the offence of ‘Qazf’ - on the part of the complainant/victim, he or she as the case may be under section: 3 of the of QO - and thus the real complainant/victim, he or she as the case may of zina or zina-bil-jabr, would become the real and defenseless offender of ‘Qazf’ - and the real offender, he or she as the case may be, of zina or ‘zina-bil-jabr’ would become the real and brutal complainant of ‘Qazf’ against the complainant/victim of the zina or‘zina-bil-jabr’ that was committed with him, her or the complainant’s relative as the case may be. And as we owning the existing wording of section: 3 of QO - there would be a zero chance for the complainant/victim of zina or ‘zina-bil-jabr’ to be acquitted of the charge of ‘Qazf.’ Because under section 6 (b) of the QO - one of the smoking guns for the proof of ‘Qazf’ liable to Hadd is the commission of ‘Qazf’ in the presence of the court. And thus a real complainant/victim of zina or ‘zina-bil-jabr’ may be turned into a proven offender of ‘Qazf’ - and thus would be convicted much easily under the law of QO. Now of course QO is one of the five Hudood laws that have been derived from the Holy Qur’an and Sunnah. But the question is whether the loophole lies in the Divine Law? The answer is a definite No, for that is impossible. Actually the flaw lies in the interpretation and wording of section: 3 of the QO - which is in my opinion simply a bona fide human error and must be accepted as such. Nay, bonafide allusion to some flaw which is based on human error in the provision/provisions of a script or codification of some law, including the Hudood Laws must not be equated to refusal towards the Hudood Laws, for then no one would find it easy to point out any such human error and try to fix the same - and the suffering from that human error shall be attributed (God forbid!) towards the Hudood Laws - and we won’t be entitled to be absolved from the responsibility. So having admitted the flaw, the aforementioned section of the QO may be re-edited properly along with amendments in other sections thereof correspondingly by the competent scholars on the subject. I quote verses 4 and 5 of Surah An-Nur of the Holy Qur’an - whence the law of Qazf has been derived. My reliance in this regard is upon the translation made by the world-renowned scholar, Sayyed Abul A'la Maudoodi in his marvelous Tafseer, (viz Commentary on the Holy Qur’an) - Tafheemul Qur’an, for his translation is far excellent - and he has translated the Qur’anic Word, “yermona” by the most proper & suitable Urdu word “tuhmat.” His translation (translation from his Urdu translation into English is mine) of Verses No: 4 and 5, Surah An-Nur is as under: “And those who ‘slander’ innocent women but bring not four witnesses, scourge them (with) eighty stripes and never (afterwards) accept their testimony – they indeed are evildoers” - (24 -4, Surah An-Nur) - “Save those who afterward repent and make amends (For such) lo! Allah is Forgiving, Merciful.” (24 -5, Surah An-Nur) The Qur’anic words, “wallazeena yermona” - viz “And those who ‘slander” innocent women (viz innocent persons, whose reputation is above board) suggest and imply only the ‘false accusation’ - viz slander - which is quite distinct from the word ‘accusation’ - as the Urdu word ‘tuhmat’ is quite distinct from the Urdu word ‘ilzam’. Accusation (viz ‘ilzam’) may be proved or otherwise - but slander (viz tuhmat or buhtan) is meant to be false and would be presumed to be false, for it is based only on the misjudged imagination of evil thinking person or persons - and which could not be corroborated in any way in the circumstances of the case - and can’t be substantiated. And this is why that the words, “wallazeena yermona” - (viz and those who ‘slander’) have been followed by the words “muhsanat” - (viz innocent persons) immediately. The ‘accusation’ and ‘slander’ can be set apart by illustration. Suppose a complainant/victim lodges a report before the competent official that such and such person raped him or her or his/her relative and that the culprit be thus proceeded against - this is known as accusation and this causes the competent official duty bound to bring the state criminal machinery in motion, initiate investigation and try his level best for gathering all the relevant materials of evidentiary value insofar as the alleged offence is concerned and submit a complete challan before the competent court. In doing so the foremost vital step is the medical examination of the victim as well of the accused if he/she is under arrest as early as possible. Here the medical examination of the victim would make at least the investigation agency acquainted about the commission of the alleged offence, irrespective of the fact whether the offence was committed by the nominated accused or else. Thus if the medical report was positive then the complainant/victim could not, must not and should not be made accused of Qazf - if thereafter during the trial he, she or the complainant relative as the case may be failed to produce four Muslim witnesses in the support thereof. So here this type of allegation is the accusation, for it is lodged formally for a judicial trial and is substantiable, irrespective of the fact whether or not the complainant/victim would be able to produce four Muslims adult witnesses, during the trial. Now what the slander (viz tuhmat or buhtan) is? Suppose a stranger just after looking a female coming out from chamber of a Lawyer or from clinic of a Doctor or from a premises of any person - and without witnessing any offence of zina or zina-bil-jabr inside the chamber, clinic or house, for the evil thinking stranger person was not the insider at all, let alone to witness any offence and nonetheless such a stranger evil thinking person begins slandering them of committing zina or zina-bil-jabr, so this kind of allegation is known as slander (viz tuhmat or buhtan) because it is not substantiable. If context wherein the Holy Verses regarding the Qazf revealed are analyzed it would make known that; firstly: nothing wrong had either been taken place, witnessed nor it was possible for those Qazif of having alleging so, because they were accompanied with the main caravan of the Holy Prophet - secondly: none was resorting to lodge a formal complain before the Prophet Mohammad (SAW) of the so-called incidence - thirdly: none was complainant either in the family - nor there was any victim - fourthly: the complainant was spreading and selling simply his/their own evil imagination with evil intention - fifthly: the main evil propagator ( viz Abdullah Bin Ubai) of the incidence of ‘ifk’ was the icon of hypocrisy. And ergo Allah Almighty has further elaborated the Qazf by saying: “Lo! They who spread the “slander” (viz ifk) are a gang among you - deem it not a bad thing for you nay, it is good for you - unto every man of them (will be paid) that which he hath earned of the sin; and as for him among them who had the greater share therein, his will be an awful doom” - (Surah An-Nur, 24 -11). Here the Qur’anic word “Ifk” Thus in the light of the abovementioned specifics we can figure out the following: Firstly: without lodging the formal complaint before the authorized official by the victim of zina-bil-jabr, a stranger is maligning others with intent of scandalization alone would qualify the definition of ‘Qazf’. Secondly; the imputation of slander which constitutes the offence of “Qazf” means only that slander which is imputed by a person other than the victim or family member of the victim, for it is always such a stranger person who by doing so is not interested in bringing the state criminal machinery in motion for legal proceedings or in finding and producing any witnesses - but all he is out simply to injure the good reputation of those persons against whom he has imputed the accusation of zina or zina-bil-jabr - and this is the reason that Allah Almighty is referring to the lack of interest of the “Qazif” (viz slanderer) immediately, in the words “thumma lum ya’thu bearbaathe shuhada’a” - (viz and not bring four witnesses) after the words “those who slander innocent persons.” Thirdly: we could not and must not ignore the prevailing circumstances under which the aforementioned Holy Verses had been revealed. Fourthly: the words ‘who slander’ that is mentioned in the Holy Verse No: 4 is by no stretch of imagination referring to the accusation attributed by victim or her direct relative of the offence of ‘zina’ or ‘zina-bil-jabr’, for at that dreadful juncture none would be able to anticipate the outcome of the case. Fifthly: attribution of indictment which constitutes the offence of “Qazf” must have been imputed simply for the purpose and with the intention of scandalization and harming the good reputation of honorable men or women and not at all for the purpose of legal action. For instance, without lodging any formal report (viz FIR) before the authorized official, all the ‘Qazif’ is emphasizing on is; the propagation of his self-imagined evil thinking in public or publicizing the scandalous materials in media. Sixthly: accusation attributed by the victim or family member of the victim as a complaint (viz through FIR) can’t be held to have been done with malafide, for no one would like ever to toss accusation of zina against other at the sure loss of his, her or their family honor, for a concocted case of zina or zina-bil-jabr can’t be proven in any way and hence false accusation serves no purpose, rather it invites innumerable troubles from all directions. And this is the reason that if the accusers are spouses inter se then their attribution of accusation of zina towards each other, comes under separate and special provisions of ‘Lian’ – which has been ordained in Holy Verses 6 to 9 in the same Surah, An-Nur - and has been made applicable through section 12 of QO. Seventhly: if definition of ‘Qazf’ is accepted as has been made in ‘Offence of Qazf (Enforcement of Hadd) Order VIII of 1979’ - then how a poor and week girl would be able to get over if she was being subjected to zina-bil-jabr even in her own home repeatedly by a criminal and even in the presence of less than four week family members - or who after having been kidnapped were being subjected to zina-bil-jabr for months or years? Eighthly: Would she must to suffer the ordeal of rape recurrently and mutely - unless & until the brutal offender commit the offence of ‘zina-bil-jabr’ with her after having been managed by the offender himself four Muslim, adult and pious witnesses against himself and handed over the stock of those witnesses to the victim with the guarantee that she (viz victim) would have to produce them during the trial against that very offender of rape? And short of which she won’t open her mouth to lodge a report, irrespective of the fact that how many times she (viz the victim) might be subjected to rape (viz zina-bil-jabr)? Some clerics when don’t find real answers to these real questions they now do suggest that scheme of the Hudood laws so far zina-bil-jabr is concerned is that victim must be tight-lipped until the offence is committed with her, in such a situation that she would be able to guarantee producing four Muslim witnesses. But this ‘outlandish idea’ in fact is the brainchild of clerics and has nothing to do with Divine Hudood Laws regarding zina. They are selling this silly idea simply because they are unable to cope with the misconception they have been nourishing in their frozen mind. Neither a singular offender of zina-bil-jabr was seen thus far who has ever confessed his guilt since the promulgation of Hudood Laws in Pakistan, for by confessing his guilt, would one prefer to invite humiliation, stoning to death or 100 stripes? And nor four sane adult Muslims male witnesses who would also qualify the criteria of ‘tazkiyya-al-shahud’, were witnessed thus far, who have seen the occurrence of offence of ‘zina’ or ‘zina-bil-jabr’ - and that too to the extent of penetration. In this regard I suggest by illustration that section 3 of ‘Offence of Qazf (Enforcement of Hadd) Order VIII of 1979’ may be replaced by the section in the following wording: Qazf: (1) Instead of lodging a proper complaint or applying for prosecution against the offender of the alleged offence of ‘zina’ or ‘zina-bil-jabr’ before the lawful official, or the competent court, who have the lawful authority over that person with respect to the subject matter of the accusation, whoever simply with mala fide intention by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of ‘zina’ or ‘zina-bil-jabr’ concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said, except in the cases hereinafter excepted, to commit ‘Qazf’. Exception (a) if the victim of zina-bil-jabr, man or woman as the case may be or any family member of the victim attribute the accusation of the offence of ‘zina-bil-jabr’ against the offender before the lawful official who has the lawful authority over that person with respect to the subject matter of the accusation, for the purpose of legal action, but fails to prove the offence during the trial, would not amount to ‘Qazf’. Exception (b) if the victim of zina-bil-jabr, man or woman as the case may or any family member of the victim attribute the accusation of the offence of ‘zina-bil-jabr’ against the offender before the court of law, for the purpose of legal proceedings but fails to prove the accusation or fails to produce the required number of witnesses would not amount to ‘Qazf’. (2) It may be amount to ‘Qazf’ to impute ‘zina’ or ‘zina-bil-jabr’ to a deceased person, if the imputation would harm the reputation, or hurt the feelings of that person if living and is harmful to the feelings of his family or other near relatives. (3) An imputation in the form of an alternative or expressed ironically, may amount to ‘Qazf’, subject to the provision 1 of this section. Explanation: If any person who is nominated in the complaint as accused or implicated in the case of ‘zina’ or ‘zina-bil-jabr’ is acquitted in the case by the competent court of law and the accused so acquitted, or his family member or near relative, as the case may be, has bona fide reason to believe that the imputation of ‘zina’ against him or his family member or near relative as the case may be, was totally false and was merely mala fide oriented, the accused or his legal heir or family member or near relative as the case may be, may sue the complainant in the competent court of law for the damages.